Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2007] CSOH 172
A296/06	OPINION OF LORD McEWAN   in the cause   NADINE MONTGOMERY   Pursuer;   against   LANARKSHIRE HEALTH BOARD   Defenders:     ­­­­­­­­­­­­­­­­­________________

 

Pursuer: MacAulay, Q.C., Milligan; Balfour + Manson LLP

Defenders: Anderson, Q.C., Mackenzie; R F Macdonald

23 October 2007

In this action the pursuer seeks damages for injuries sustained by her son Sam who was born in October 1999. The negligence is laid against an obstetrician who was in charge of her antenatal care at Bellshill Maternity Hospital, and who delivered the baby. In essence it is said that the doctor failed at an early stage to take the proper course when tests showed this to be desirable, and as a result of waiting too long was faced with a medical emergency and opted for normal childbirth in which damage to the child resulted. It is alleged that at several specific times any reasonably competent obstetrician would have realised the need for birth to be given by means of Caesarean Section.

More particularly the Record can be summarised in this way. In Article 4 the pursuer's general medical condition is described. She was diabetic and of short stature and likely to have a larger than average baby. That meant a mechanical risk at birth to the baby of shoulder dystocia, in effect when the baby gets stuck on delivery with the risk of brain damage if delivery is not done in minutes. It is averred that such was a clear risk of any attempt to deliver the pursuer's child vaginally. Article 5 covers the clinical events from 7.30pm on 30 September 1999 until 5.26pm on 1 October when she was taken to theatre. By about 8am on 1 October, and at several specific times throughout that day, a number of warning CTG traces on the baby are said to have occurred. It is averred that on three distinct occasions resort should have been had to Caesarean Section. That would have produced a healthy child. That was not done. Normal delivery was attempted and the result was shoulder dystocia, deprivation of oxygen and resultant injury.

Senior counsel for the defenders moved me to dismiss the action or at least not to allow some of the averments to go to probation. He specified these and I will return to them. He took me first to Article 5 pointing out, with explanation, the detailed averments concerning the observable clinical events up to the birth at 5.30pm. He said that any birth prior to 3.50 would have had to be by Caesarean Section as there had been no full dilation. In the event what happened was a mechanical not a clinical problem. There had by then, been some 16 hours of CTG trace. The foetal distress could be hypoxia. Could it really be said to be negligent not to "Caesar" during that time. The damage to the child was caused by shoulder dystocia not anything else. There was no causal link between that and the trace. The loss was not caused by a source of danger known to arise from what was seen on the trace.

Counsel posed the question of whether the damage was a reasonable and probable consequence of the defenders' negligence. The probable consequence of the negligence about not reacting to the CTG trace was not shoulder dystocia. Mr Anderson referred me to Hughes v Lord Advocate 1963 SC (HL) 31at pages 44, 47 and 48.

In the alternative he asked me to exclude from probation all averments from page 7C, line 6 to the end on page 11 (ie everything about the CTG trace) and on pages 15, lines 1 to 8.

In his reply for the pursuer, Mr McAuley said that adequate notice had been given of the case made on Record. The defenders had put themselves in an emergency situation which they should not have been in at all. The risks were set out in Article 4. Because of the mother's stature and medical condition her baby was more likely to be large. The scans confirmed this. There was then an increased risk of shoulder dystocia if vaginal delivery was attempted. Thereafter the monitoring of the mother's condition by CTG trace on 1 October throughout the day showed foetal distress over a long period with several opportunities to opt for Caesarean Section. A deliberate choice not to do that was made and the defenders were then left to do an emergency vaginal delivery. That was negligent and had they not been negligent the child would have been born healthy.

It remains the law that for the case to be dismissed at this stage, I would have to hold that the pursuer could never succeed in law if she proved all that she averred (Jamieson 1952 SC (H.L). I am of the opinion here that that test has not been met and that it is quite clear what case the pursuer makes.

The defenders are clearly told of her age, stature and existing medical history. It was her first child. The pursuer then offers to prove that because of these factors she would be likely to have a larger than average baby and the risk of "mechanical problems" during labour. That is refined to mean shoulder dystocia. In effect, the baby presents in an awkward position and unless speedily delivered the risk is that the cord will be occluded with resultant oxygen starvation and risk of brain damage. Later in the record (page 13) there is a graphic description of an extended delivery and these very events occurring with devastating injuries to the child.

Prior to that the pursuer details a series of events over some eighteen hours. It is said that if there was evidence of mechanical problems or foetal distress there should have been early recourse to caesarean section. The CTG trace is then highlighted at a number of specific times, and on three occasions throughout the day it is said that any reasonably competent obstetrician acting with reasonable skill and care would on each occasion have realised the need to proceed to a "section". At any of these times the pursuer was willing to have this done. The CTG trace was continually showing evidence of foetal distress, i.e. danger to the child. No decision to "section" was taken and by early evening it is said an emergency arose with the consequences I have described.

In my opinion these arguments disclose a relevant case. The pursuer offers to prove that if a "section" had been done the baby would have been born healthy. It is perfectly correct to say that the cause of the injuries was the shoulder dystocia and occlusion of the cord. However, on a proper reading of the pleadings that is only a causa sine qua non. The effective cause (or causa causans) of the injury was the failure to react to the CTG trace in light of what was known of the pursuer in general, and the ongoing monitoring in particular which was becoming increasingly alarming. The proper reaction should have been to "section" not to opt for natural childbirth in the face of a serious risk. That incorrect decision caused the loss.

In my opinion, Hughes at the passages cited does not assist the defenders. The pursuer says that the mechanical problem was reasonably foreseeable due to the pursuer's known characteristics, and became an obvious risk when the chances to perform a "section" were successively lost and the emergency arose. In my opinion the words of Lords Morris, Guest and Pearce support the pursuer rather than the defenders. In spite of the description of the actual delivery of the child, the pursuer is not saying this was any breach of duty, however clumsy or inept it seems to have been. What is said is that natural childbirth should not have been attempted at all.

Properly read, the pursuer is not criticising the technique of the doctor at the actual delivery but is critical of the decision not to resort to a safer method via "section".

The breach of duty, not to opt for a "section" at an early stage, looking at the whole circumstances disclosed can in this case fairly be said to be the main cause of the harm.

In these circumstances, before answer, I propose to allow a proof. It follows from what I have said that I am not prepared to excise from the Record any of the detailed averments criticised by the defenders. They are essential to the pursuer's case which I hold to be relevantly averred.